PSGB# 2020-0022

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bryan

Complainant

• and –

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Marilyn Nairn

Vice Chair

FOR THE COMPLAINANT

Gerald Bryan, Nancy Zuliani, Michelle Currie, Nancy Nicol, Carol Peterson, Amanda Carruthers, Danuta Rasiewicz

FOR THE EMPLOYER

Braden MacLean (Counsel) Treasury Board Secretariat Legal Services Branch Jennifer Charlton (ER Advisor) Dean Dunne (Deputy Regional Director)

HEARING

March 30, 2021

Decision

1This complaint is brought by Gerald Bryan, a Health Care Manager (“HCM”) working with the Ministry of the Solicitor General (“SOLGEN”) at the jail in Sarnia. His complaint is one of twenty-three complaints brought by HCMs across Ontario, each of whom works in a correctional facility. Each complaint claims ‘temporary pandemic pay’. Mr. Bryan’s complaint proceeded to hearing as representative of the complaints. The other complaints have been held in abeyance pending the outcome of this complaint.

2Evidence and submissions were heard by videoconference and documentary material was received. A number of other complainants attended the hearing, although some were unable to remain throughout the proceedings. The following facts are summarized from the evidence, including the documentary material filed.

3On April 25, 2020, in response to the public health threat of Covid-19, the Province of Ontario announced temporary pandemic pay measures for certain front line workers. This ‘pandemic pay’ was to be payable for a period of 16 weeks until August 13, 2020 and was to be calculated as an additional $4.00/hour to eligible workers, as well as an additional lump sum payment for those eligible workers who worked more than 100 hours per month. These pandemic pay measures applied to eligible public servants employed by the Province as well as to eligible workers in the broader public sector.

4In the Province’s announcement published on April 25, 2020, eligible workers were described as including, among others, staff working in correctional institutions and youth justice facilities, as well as staff providing frontline clinical services. Eligible staff working in adult correctional and youth justice facilities in Ontario included “nurses” and “healthcare staff”.

5Subsequently, on May 29, 2020, Ontario Regulation 241/20 (the “Regulation”), made pursuant to the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020 was promulgated and its application was made retroactive to April 24, 2020. The Regulation identified who was eligible for pandemic pay as follows:

1. In this Order,

“eligible employee” means an employee who is entitled to receive temporary pandemic pay in accordance with the document entitled “Eligible workplaces and workers for pandemic pay” dated May 29, 2020 and available at https://www.ontario.ca/page/eligible-workplaces-and-workers-pandemic-pay; (“employé admissible”)

Application

2. This Order applies to the following, province-wide:

3. Eligible employees.

6The document referenced in the Regulation, “Eligible workplaces and workers for pandemic pay”, also dated May 29, 2020 provided as follows:

Temporary pandemic pay is designed to support eligible full-time, part-time and casual employees. It does not apply to management.

To receive pandemic pay, you must work in both an eligible:

• role (i.e. be an eligible worker)

• workplace

(emphasis added)

7In a drop-down option to “learn more”, a section describing who is eligible stated:

Pandemic pay does not apply to management employees, including individuals in managerial positions who were redeployed to work in eligible front-line positions.

8A memo dated June 6, 2020 from the Assistant Deputy Minister of the Institutional Services Division of SOLGEN (the “ADM”) and distributed by Regional Directors reiterated that the temporary pandemic pay applied to non-management front line staff. Registered nurses working at correctional facilities, other than Heath Care Managers, were eligible for and apparently received this pandemic pay. HCMs did not.

9Also, by memo dated April 28, 2020 from the ADM, Sergeants and Staff Sergeants working in adult correctional institutions were informed that they were not eligible for pandemic pay as set out in the Regulation, “despite working in congregate settings on the front-line”. However, in recognition of their “commitment and sacrifices”, the Employer announced a temporary measure applicable to Sergeants and Staff Sergeants in adult correctional institutions that provided a lump sum payment to eligible employees actively performing the duties of those positions during regularly scheduled hours. For a full-time Sergeant or Staff Sergeant that additional compensation amounted to $890 for each 4-week period over a 16-week period, which amount was pro-rated for those working less than full-time hours.

10That memo also recognized the role of Sergeants and Staff Sergeants within institutions as follows:

Sergeants and staff sergeants play a vital role in our adult correctional institutions by ensuring the health and safety of fellow staff and inmates are maintained. You are often called upon to lead the team, fill in the gaps and help other staff manage crisis situations, often making split-second decisions under extreme stress and in difficult conditions. As part of the front-line, you are on the floor working directly with inmates, de-escalating volatile situations, and supporting your colleagues.

11Sergeants, Staff Sergeants, and HCMs are considered management personnel by the Employer. Mr. Bryan does not dispute that, in his role as HCM, he is a member of the management team.

12Mr. Bryan testified that the Health Care Managers are akin to Sergeants and/or Staff Sergeants in that they also work on the front lines and play a key role in ensuring the health and safety of staff and inmates, as well as helping staff manage difficult situations. The Health Care Managers lead the nursing team within the institution and are required to be registered nurses. Mr. Bryan testified that the HCM must step in and provide clinical care whenever there are nursing staff absences and/or staff shortages.

13In his request for reconsideration dated April 29, 2020 sent to the Premier and copied to senior Ministry officials, Mr. Bryan stated that HCMs often worked beyond their recognized hours of work and that recruitment of nursing staff was an ongoing issue, leading to regular staff shortages, requiring the HCM to step in. He identified his concerns, in part, as follows:

We, along with our staff are working tirelessly to manage the pandemic while managing the complex care needs of our clients. ... We are part of the frontline as well, which is not unique to acute care centres.

Correctional facilities are not considered acute care settings even though we deal with medical emergencies daily, with limited technology and poor infrastructure and medical equipment that is outdated. We are routinely challenged by outside acute care agencies for assistance with managing the care of these individuals. Along with the challenges in house, we must work with operational demands to coordinate and facilitate healthcare services. During the Pandemic period outside specialist referrals are limited leaving the maintenance of care entirely to the health care staff to manage.

The individuals to whom we provide care often have difficulty understanding their unique needs and have developed coping strategies that create challenges while incarcerated. These include continued drug use, poor behavior and drug hoarding which potential can lead to overdoses and compromised care.

The discharge of these individuals is difficult in normal situations but during the Pandemic we need to guide and facilitate the isolation expectations, prior to discharge to assist with stopping the spread of the virus. The contact and facilitation of pandemic information, resources and education has tripled the requirements for release. We are constantly advocating and planning for housing but during this time of closures it makes arranging their care and follow up in the community more complicated.

Additionally, as healthcare managers we have become the leads and “go to” for infection control and prevention within our institutions. Daily we are bombarded with dozens of questions, how to? when to? etc. Further, we have been handed an additional role as educator for operations and staff daily, we communicate updates, changes to processes and keeping everyone abreast of the fluidity of the crisis. If a pandemic within our institutions was to take place the Healthcare Manager will be imperative to manage the outbreak, protect the patients and staff.

…our work is unique and does not just include providing leadership, expertise and guidance but requires hands-on care to ensure positive outcomes…

14In response, by letter dated May 28, 2020, Deputy Solicitor General (“DSG”) Richardson advised Mr. Bryan, in part, as follows:

In recognition of the incredible efforts of our management teams within institutions, on April 6 2020, the government authorized overtime payments for management staff who normally would not be eligible . This was an exceptional measure that we were able to secure during the COVID-19 outbreak due to the critical support you provide.

The quick response from Health Care Managers in implementing effective precautionary measures to protect staff and clients within correctional institutions from the spread of COVID-19 has been remarkable. I want to impress upon you my continued appreciation of your steady leadership during these uncertain times, and I wish to thank you for your continued commitment to corrections.

15Sergeants are eligible for overtime after their regularly scheduled 40 hours of work per week. HCMs are not typically entitled to overtime. This measure entitled HCMs to overtime after 44 hours of work per week. The HCMs normal hours of work are 36.25 hours per week, requiring that 7.75 additional hours per week be worked before any overtime would be payable. It was not clear from the evidence whether HCMs are paid on a salaried basis, meaning those 7.75 hours would not attract additional compensation even at straight time pay, or whether those hours are paid at an additional but straight time rate.

16In his viva voce evidence, Mr. Bryan reiterated that the HCMs are registered nurses subject to the same standards of care and professional obligations as the nursing staff. He stressed that HCMs are also on the front lines with regular and direct inmate contact, and that in accordance with their professional standards as members of the College of Nurses of Ontario they cannot and would not leave their clients unattended.

17Mr. Bryan testified that during the period of pandemic pay the HCMs were spending long hours putting COVID-19 policies into place within their institutions, directing staff, providing training in the use of PPE to correctional officers and Sergeants, being on the units and working with inmates, and being as much exposed to the public health risk as Sergeants and Staff Sergeants.

18In asserting that HCMs were and are on the frontlines, Mr. Bryan referred to a memo from the DSG dated May 12, 2020, sent to all nurses and healthcare professionals in Corrections in recognition of International Nurses Day. In that memo the DSG expresses gratitude on behalf of Correctional Services to “each of you for the critical, life-saving work you do on the frontlines in our correctional system”. Although hearsay, Mr. Bryan also referred to a quote attributed to Ruth Dixon, Provincial Health Care Manager, Corporate Health Care and Wellness Branch in SOLGEN, interviewed as part of National Nursing Week, wherein she twice refers to institutional “frontline health care managers”.

19The Regulation also states the following:

Payment of temporary pandemic pay to eligible employees

3. Despite any other statute, regulation, order, policy, arrangement or agreement, including a collective agreement, the following rules apply with respect to temporary pandemic pay:

4. No employer, tribunal, arbitrator, arbitration board, officer or court may expand eligibility for temporary pandemic pay or require the payment of temporary pandemic pay to employees who are not eligible employees.

20It was the position of the Employer that the Board had no authority over this complaint in that the Complainant had not established that he enjoyed a term or condition of employment entitling him to pandemic pay either under the Regulation or the pandemic pay granted to Sergeants and Staff Sergeants working in adult correctional facilities. Nor could the Board create such a term or condition of employment, argued the Employer. It referred me to Ontario Regulation 378/07, Regulation 241/20, and the Board’s decisions in Hugh MacDonald et al v Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 and Johnston et al v Ontario (Community Safety and Correctional Services), 2019 CanLII 65197. The Employer argued that while one might sympathize with the claim, the Board has no ability to do anything other than enforce existing terms and conditions of employment, and there was no term or condition of employment in respect of temporary pandemic pay for HCMs.

21Both in evidence and in argument Mr. Bryan submitted that the HCMs were properly considered frontline and essential workers and that, absent the HCMs in the institutions during the period of the temporary pandemic pay, the correctional staff, including Sergeants, would have floundered in trying to deal with the public health issues. He argued that the HCMs were a key part of putting the pandemic response in place in the institutions and that they had made at least the same commitment and had taken the same risks as the Sergeants. He argued that no one ‘signed up’ to work during a pandemic but that the HCMs had responded, understanding that they were a critical resource during the health care crisis. He acknowledged that HCMs had been given a limited right to overtime. He argued that, while grateful for that temporary recognition, it essentially amounted to a symbolic gesture given its application. The HCMs, Mr. Bryan argued, were asking that they be recognized as front line workers in the same way that Sergeants and Staff Sergeants had been recognized.

22Mr. Bryan estimated that there were approximately 750 Sergeants and Staff Sergeants made eligible for temporary pandemic pay. He noted that there were only 23 HCM across the province who could have been similarly included at a fraction of that total cost, thereby providing the same measure of recognition and respect. He argued that the HCMs had been unfairly and inappropriately denied this compensation.

23There are two relevant temporary pandemic pay entitlements. The first flowed from Regulation 241/20 which established the legal foundation for entitlement to the temporary pandemic pay on a province-wide basis within the public sector and broader public sector. The second was provided within the auspices of the Ministry of the Solicitor General to Sergeants and Staff Sergeants working in adult correctional institutions across the province.

24Regulation 241/20 is clear that, in order to be considered a worker eligible for temporary pandemic pay under that Regulation, one must be entitled to receive that pay in accordance with the document titled “Eligible workplaces and workers for pandemic pay” dated May 29, 2020 and made available on the Province’s website. That document states very clearly that temporary pandemic pay does not apply to management personnel. Health Care Managers are part of the management staff in correctional institutions. Mr. Bryan was unable to point to anything else creating an entitlement to this pandemic pay.

25There is nothing before the Board from which one could find that Mr. Bryan, as an HCM, was entitled to the temporary pandemic pay provided by Regulation 241/20. Although HCMs work in an eligible workplace, they are not considered eligible employees under the Regulation. Legally, it matters not whether Mr. Bryan is considered to be working on the ‘frontlines’. All management personnel were excluded from eligibility for that additional compensation.

26In the result, Mr. Bryan’s contract of employment does not include entitlement to temporary pandemic pay as provided by Regulation 241/20 as the benefit of that Regulation does not accrue to Mr. Bryan as a manager. Put another way, the temporary pandemic pay provided under the Regulation does not form part of the terms and conditions of employment for Mr. Bryan in his role as HCM.

27Section 3 of Regulation is also clear that the Board has no authority to require the payment of temporary pandemic pay provided by the Regulation to someone who is not otherwise an eligible employee.

28The second pandemic pay entitlement was that provided to Sergeants and Staff Sergeants at adult correctional facilities. Again, that entitlement was made exclusive to persons working in those positions. It did not extend to HCMs. As the Employer correctly argued, Regulation 378/07, made under the Public Service of Ontario Act, 2006 as amended, establishes the scope of this Board’s jurisdiction. Section 4 of that regulation allows excluded employees to file a complaint concerning an alleged breach of an existing term or condition of employment. The Board’s authority has consistently been described as one of enforcing existing terms and conditions of employment, not creating new terms of employment. As the decision in Hugh MacDonald et al, supra, states:

17As noted in earlier decisions of this Board, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related "to the facts complained of something that is part of the complainant’s contract of employment. This is something more than a belief that something is unfair, no matter how deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give. See, in this respect: Antle v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 30741 (ON PSGB) and Allen v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43639 (ON PSGB).

(emphasis added)

29It is perhaps unfortunate that, at no time, including at the hearing, was any rationale provided for why the HCMs were temporarily allowed to claim overtime rather than being included in the provision of temporary pandemic pay in the same manner as Sergeants and Staff Sergeants working in the same adult correctional institutions. The temporary pandemic pay applied to regular hours of work not overtime. In the result, every HCM in the province filed a complaint before this Board.

30This Board, however, has no authority to create or introduce a term or condition of employment that does not already exist in an employee’s contract of employment. The Board’s role is one of enforcing existing terms. Having regard to all of the above, I find that there is no term or condition of employment entitling Mr. Bryan to temporary pandemic pay, either under Regulation 241/20 which does not extend to management personnel, or, in the same manner as that introduced exclusively for Sergeants and Staff Sergeants in adult correctional facilities.

31In the result, this complaint is hereby dismissed.